U.S. Supreme Court Backs Orrick Appellate Team in Major Federal Sentencing Case

Rejecting the views of 10 courts of appeals, the U.S. Supreme Court today sided with an Orrick appellate team and its client Erik Hughes in an important case at the intersection of the Federal Sentencing Guidelines and rules of stare decisis. The 6-3 ruling provides Mr. Hughes an opportunity to lower his sentence by years—to the level available to every other defendant who’s sentenced for the same crime today.

The case focused on criminal sentences that are lowered by the Sentencing Commission under federal law. The Commission can make those reductions available retroactively because defendants who were sentenced yesterday shouldn’t be deprived of the chance at a lower sentence that’s available to someone who’s sentenced for the same crime today.

But a wrinkle was at the heart of the arguments in Hughes. Defendants may apply for a reduced sentence only if the sentence was “based on” a Guidelines range that has since been lowered. And there’s been great controversy about whether the type of plea agreement that Mr. Hughes entered into—a so-called “Type-C” agreement—is “based on” a Guidelines range at all, or if it’s just based on the plea agreement between the defendant and the government. In 2011, the Supreme Court tried to answer this question in Freeman v. United States but fractured 4-1-4. Until now, courts interpreting Freeman have been badly divided over whether to follow the plurality of 4 justices; to follow Justice Sotomayor’s sole concurrence; or if they’re not bound at all.

An Orrick team led by partner Eric Shumsky persuaded the Supreme Court to resolve this confusion in Mr. Hughes’s favor. The majority held that defendants who enter into these plea agreements indeed can be eligible for a retroactive sentence reduction. Justice Sotomayor changed her vote from Freeman and joined the majority opinion in full, as did Justice Gorsuch (whereas Justice Scalia, whose place he took, had sided with the Freeman minority). Justice Sotomayor explained that although she still believed her Freeman concurrence “sets forth the most convincing interpretation of” the law, she had been persuaded that the divided opinions in Freeman had caused unacceptable confusion. “I therefore join the majority in full,” she wrote, “because doing so helps to ensure clarity and stability in the law….” And the rule announced in Hughes “ensures that similarly situated defendants are subject to a uniform legal rule.”

“Today’s decision will have dramatic consequences for people, like Mr. Hughes, who are serving sentences based on Sentencing Guidelines that Congress and the Sentencing Commission now recognize were too harsh,” Eric said. “They’ll now get the chance to explain to a judge why they should get months or years of their lives back to spend with family and contribute to society.

Congress decided that people serving unduly harsh sentences, imposed under outdated guidelines, should be eligible to have their sentences reduced. As six Justices explained today, that relief shouldn’t be denied on the basis of a formality—the type of plea agreement a particular defendant signed.”

The win in Hughes marked a highly successful term for Orrick’s Supreme Court and Appellate Practice, which secured five successful outcomes in all five cases heard by the justices. Four different partners from the group argued the cases, including Josh Rosenkranz, head of the practice group, and partners Bob Loeb and Kelsi Brown Corkran, in addition to Eric.

Eric Shumsky is a nationally recognized appellate lawyer. He handles high-stakes appeals across an array of subjects, with a particular focus on cutting-edge technology.

Chambers USA reports that Eric is “hailed as ‘highly intelligent, an effective communicator and a great writer’ by contacts, and his high-profile work in the tech patent sector is of particular interest to those who recognize him as one who ‘prepares meticulously, anticipates every question, and is a gifted orator.’” Legal 500 touts his “exceptional courtroom demeanor and presentation skills.” And Reuters, in a report reviewing some 17,000 practitioners, identified Eric as part of an “elite cadre” of 75 lawyers who are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.”

Eric has served as appellate counsel to numerous leading companies, including Apple, AT&T, Carnegie Mellon University, Del Monte, DISH Network, Facebook, Genentech, Gilead, KPMG, LG Electronics, LinkedIn, Microsoft, Morgan Stanley, Netflix, Norfolk Southern, and Synopsys. Across an array of industries, Eric has briefed and argued issues as diverse as patent and copyright, labor and employment, preemption, punitive damages, environmental law, national security, and foreign sovereign immunity. He has been a primary author of more than 100 briefs in the Supreme Court alone.

Eric has particular expertise in matters of technology and intellectual property. He has litigated patent appeals involving technology ranging from semiconductor construction, computer architecture, and genetic sequencing to tobacco curing, keyboard trays and electrical junction boxes. Eric has been praised by clients for his deep knowledge of the Federal Circuit, and repeatedly called upon to handle cases at the leading edge of patent law. And he has handled multiple appeals involving novel issues concerning the regulation of the internet, including computer fraud, takedown notices, and internet domain names.

In addition to traditional appellate work, Eric has years of experience developing legal strategy in trial courts. Trial teams repeatedly have called on him to brief and argue key legal issues in particularly high-profile and complex cases. Eric has performed this role in high-stakes multi-district litigation, criminal trials, and civil litigation involving critical dispositive motions.

Prior to joining Orrick, Eric was a partner in the appellate group at Sidley Austin. He previously worked as a law clerk for the Honorable M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit, and the Honorable Wm. Matthew Byrne, Jr., of the United States District Court for the Central District of California.

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